Thursday, December 13, 2012

ObamaCare Is Dead In The Water

ObamaCare
was a poorly conceived and is a constitutionally deficient statute.
The Supreme Court's ruling upholding the law has simply made it worse.
In the future, that decision is likely to be seen as a prime reason
that the federal court judges should just judge and never legislate—even in the cause of rescuing an otherwise unconstitutional law from oblivion.
In the ObamaCare ruling, the Supreme Court correctly held that
Congress could not impose the individual mandate as a constitutional
regulation of interstate commerce and that Congress could not
constitutionally use its spending power to coerce the states to expand
Medicaid.Rather than strike down the law, however, the court construed the insurance-purchase mandate and its penalty as a "tax" on the failure to have health insurance. The justices also interpreted the Medicaid-expansion requirements as optional—permitting states to opt out
of these provisions while staying within the traditional Medicaid
program. Given that interpretation, the court's majority upheld the
statute as constitutional.
The court's determination to preserve ObamaCare through "interpretation" has exacerbated the law's original flaws to the point that it has become palpably unworkable. By transforming the penalties for failing to comply with the law's requirements into a "tax,"
the court has given the public a green light to ignore ObamaCare's
requirements when it is economically beneficial. Law-abiding
individuals, who might otherwise have complied with the law's expensive
purchase mandate to avoid being subjected to financial penalties, can simply now choose to pay a tax and not sign up for coverage.
There is certainly no stigma attached to simply paying a tax, and
noncompliance with the law's other requirements—such as those imposed
on employers—is arguably made more attractive on the same basis. This
effect fundamentally undercuts Congress's original purpose, which was
to expand health-care coverage to the greatest number of people, not to
improve federal revenues.
Similarly, having reviewed the likely costs and benefits, states are now taking advantage of the court-granted flexibility. Seven states, including Texas, Mississippi and Georgia, have so far opted out of the Medicaid-expansion provisions, and eight (with more certain to come) are refusing to create the insurance exchanges,
leaving this to a federal bureaucracy unequipped to handle these new
administrative burdens. As a result, a growing number of low-income
Americans will be unable to obtain the free or cost-effective insurance
that Congress originally meant them to have, although they remain
subject to the mandate-tax.
On December 7, New Jersey Governor Chris Christie vetoed
legislation establishing a state-run health insurance exchange. This was
just after he had visited President Obama at the White House to discuss
Superstorm Sandy cleanup costs. Governor Christie said he blamed
President Obama for failing to provide answers that he needed to make a
fiscally sound decision on the best way to comply with the ObamaCare
law.States have until December 14th to decide
whether to establish a state-based exchange. They have more time to
decide whether to partner with the federal government or to let federal
bureaucrats design and run the state exchange. ((Santi, Angela, Christie
Vetoes ObamaCare, Washington Times, Dec. 7, 2012)
Policy problems aside, by transforming the mandate into a tax
to avoid one set of constitutional problems (Congress having exceeded
its constitutionally enumerated powers), the court has created another
problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution's "Uniformity Clause" (Article I, Section 8, Clause 1) requires the tax to "be uniform throughout the United States."
The Framers adopted this provision so that a group of dominant states
could not shift the federal tax burden to the others. It was yet
another constitutional device that was simultaneously designed to
protect federalism and safeguard individual liberty.
The Supreme Court has rarely considered the Uniformity Clause's reach,
but it cannot be ignored. The court also refused to impose meaningful
limits on Congress's power to regulate interstate commerce for decades
after the 1930s, until justices began to re-establish the
constitutional balance in the 1990s with decisions leading up to the
ObamaCare ruling this summer. And although the
court has upheld as "uniform" taxes that affect states differently in
practice, precedent makes clear that a permissible tax must "operate
with the same force and effect in every place where the subject of it
is found," as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.
ObamaCare provides that low-income taxpayers, who are nevertheless
above the federal poverty line, can discharge their mandate-tax
obligation by enrolling in the new, expanded Medicaid program, which
serves as the functional equivalent of a tax credit. But that program
will not now exist in every state because, as a matter of federal law,
states can opt out. The actual tax burden will not be geographically
uniform as the court's precedents require.
Thus, having transformed the individual mandate into a tax, the court
may face renewed challenges to ObamaCare on uniformity grounds. The
justices will then confront a tough choice. Having earlier reinterpreted
the mandate as a tax, they would be hard-pressed to approve the
geographic disparity created when states opt out of the Medicaid
expansion. But that possibility is inherent in a scheme that imposes a
nominally uniform tax liability accompanied by the practical equivalent
of a fully off-setting tax credit available only to those living in
certain states. To uphold such a taxing scheme would eliminate any
meaningful uniformity requirement—a result that the Constitution does
not permit.
(The Opening For a Fresh ObamaCare Challenge, Rivkin, David B. and Casey, Lee A.p; WSJ, Dec. 6, 2012)

How the Supreme Court Doomed the Affordable Care Act to Failure

January 9, 2013
The
Supreme Court's surprise ruling on the Affordable Care Act (ACA) has
left many observers wondering about the implications of the ruling on
the law itself, says Thomas A. Lambert, the Judge C.A. Leedy Professor
of Law at the University of Missouri Law School.

In a 5-4 decision, the Supreme Court ruled that the ACA is constitutional.

In writing the opinion, Chief Justice Roberts, argued that the individual mandate is nothing more than a tax.

However, the Court struck down the provision that would deny
Medicaid funding to states that did not expand their Medicaid roles.

Together, the ruling has a profound impact on the health care market
and is likely to raise premiums and the cost of medical care. For
example, the cost of paying the tax for not having insurance is not
steep enough to encourage young, healthy individuals to enter the health
care market. These individuals would rather take the risk and pay the
penalty because it would be cheaper than acquiring health insurance.
This is problematic considering that the infusion of younger and
healthier individuals is necessary to spread risk in the market and
lower overall premiums. In addition, the decision also limits Congress's
ability to increase the penalty.
Proponents of the ACA argue that the subsidies in the bill will
entice younger people to purchase insurance. However, the subsidies are
too small and out-of-pocket costs for insurance will be much higher than
simply paying the tax.
Additionally, the efforts to reduce medical costs are likely to fall
short of achieving their goals. The ACA has aimed at doing the
following:

Increased funding for eliminating waste, fraud and abuse.

Price controls on Medicare charges.

Emphasis on preventative care.

There are other measures as well but none of them attack the root of
health care inflation: the lack of competition in providing medical
services. If consumers were put in a position to pay more for their
health care, there would be more emphasis on finding an affordable
insurance plan. As a result, insurance companies and other medical
services would compete to lower their prices and attract new customers.
( Thomas A. Lambert, "How the Supreme Court Doomed the ACA to Failure,")

About Me

I am a thoroughly civilized, humane, cosmopolitan, polished, restrained, enjoyable, entertaining Info-maniac. I am a staunch exponent of individual dignity, freedom, equal access to legal services, and equal protection of the law. Here I hope to demonstrate my emotional restraint, humbleness of sentiment, psychological subtlety, lucid style, and simple language, without evading political reality or eternal truth. Daily I am excited that I have the right to create the beginning of a new self and to challenge old habits and attitudes I no longer choose to accept. I choose to relax in the present with my direction firmly in mind. I have an enormous capacity for creative and clever ideas and thoughts. It is phenomenal what I can do. I am capable of so much learning and absorbing a lot of information. My potential is a source of pleasant surprise for me.
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